How to Survive Depositions Gone Wrong

There are ample resources out there to give you an idea of how to handle a deposition—what objections to make questions to ask, how to get the most of the deponent, how best to prepare, etc. That is all helpful if everything goes according to plan. It’s not too helpful when things go wrong. When things go terribly wrong, you’re pretty much on your own.

There was a case not too long ago that caught my eye because of the magnitude of its wrongness. In GMAC Bank v. HTFC Corp., an attorney and his client were fined nearly $30,000 for conduct in a deposition. Over the course of 12 hours and 2 days, the deponent dropped the F bomb over 70 times, evaded questions, mocked the deposing attorney and walked out a number of times.

As a student of human nature, I was fascinated by several aspects of this case. What made someone act like this? Could this kind of behavior be controlled? And most fascinating of all, how could someone put up with this? What were you supposed to do?

The judge in the case was clearly not amused (“Now, this is a serious matter and I will tell you that I’ve been around civil proceedings for 30 years, both as a lawyer and as a judge. I’ve never seen anything like this.”) He imposed sanctions not only on the deponent for his conduct, but also on the attorney for not controlling his client. The sanctions were based on the Federal Rules of Civil Procedure, but in hearings leading up to the decision and in the decision itself the judge wondered whether the behavior of the attorney was ethical.

Ethics courses are usually pretty boring, so I thought this was an excellent opportunity to put together a decidedly “unboring” course. I got some excellent practical perspectives and input from a fantastic panel.  A judge, a trial attorney and a forensic psychologist weighed in on a whole host of practical aspects of the case:

  • how they would handle a situation like this,
  • how to avoid getting into a mess like this,
  • how to best extricate yourself when you find yourself in it,
  • how to clean it up after you realize what’s happened,
  • how to handle out-of-control clients,
  • when to involve the judge when you find you can’t.

Hopefully it’s of some use or interest. Have you had some clients get out of hand? What did you do?


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